Harassment in the workplace

Sexual harassment is an insidious form of bullying. Like all forms of bullying, the perpetrator relies on the fact that the victim will be too scared to come forward and speak out. They can ensure this by asserting some power over the victim, be it through brute force, emotional abuse or another form of manipulation. The workplace is no exception: the tool to ensure silence is seniority, influence or fear of ridicule.

The latest furore at Westminster has made companies (and government) really sit up and take notice. As we have seen, a domino effect has swept through Parliament bringing a number of sexual harassment perpetrators to account. This chain-reaction makes a very important point: victims are afraid to speak out alone, but once they realise others have been through the same experience, they feel more able to voice their own experiences of harassment.

To understand the mechanics of sexual harassment in the workplace, companies need to understand the power-dynamics at play. The two main reasons victims don’t speak out are:

1) they are worried that they may jeopardise their job/ job progression if they do, and

2) they may jeopardise their relationships and reputation with other employees.

It is an indictment on our workplace culture that either of these concerns exists. The first concern points to a problem in leadership structure and/ or lack of necessary safeguards. The second indicates a problem with the workplace culture itself. Both reasons present serious issues to businesses and can have far-reaching impact on parties involved, as well as on the health, growth and reputation of an organisation.

Companies need to take action. Consequences of inertia could include: loss of top talent, reputation damage, dismissals, withdrawal of investment and legal proceedings.

Kerry Scott-Patel, an employment law specialist explains: The law relating to sexual harassment in the workplace is found in the Equality Act 2010 (“the Act”). An individual can make a claim for discrimination on the grounds of harassment against their employer on the basis that the employer is vicariously liable for the conduct of its employees in the workplace. This may also be extended to workers and agents of the employer. Claims can also be made against the individual employee responsible for the act of harassment or discrimination. Claims are made under the Act for which the compensation levels for successful claims are currently uncapped.

An organisation can defend itself against a harassment claim if it can show it took “all reasonable steps” to prevent the employee from carrying out the discriminatory act. “All reasonable steps” is not defined in the Act but an organisation would need to show more than simply having an equal opportunities or bullying and harassment policy. An organisation would need to show that it regularly revised its relevant policies, demonstrated that it pro-actively promoted the policies, carried out regular training and update sessions for managers and employees and dealt with any allegations of bullying and harassment appropriately.

Educate

To prevent sexual harassment, you first need to identify it. According to Citizens Advice website “sexual harassment is unwelcome sexual behaviour, which could be expected to make a person feel offended, humiliated or intimidated. It can be physical, verbal or written”. However this is a broad and somewhat vague definition. What is ‘sexual’ behaviour? When is it unwelcome? The uncertainty about what is sexual harassment versus good-natured workplace ‘banter’ is a big contributor to why victims remain silent.

Scott-Patel warns: “organisations need to be aware that bullying and harassment is not always of the serious sexual kind we are seeing reported in the press. Name calling, mimicking, jokes at an employee’s expense can all be bullying behaviour. Often managers see this as “team banter”. Managers in particular need to be clear as to what healthy team banter is and where it crosses the line into bullying or harassment”.

It is therefore imperative to educate employees on what constitutes sexual harassment. This thereby equips those who are harassed with the ammunition and conviction to speak out and disarms those who perpetrate the harassments, by removing any excuse of ignorance.

The best way combat such incidents is implement a bullying and harassment policy, which employees can use for information about the sort of behaviour that is unacceptable in the workplace and what an employee should do if they experience this behaviour. However, having a policy is not enough. Organisations should be actively advocating a workplace culture where bullying and harassment is not tolerated, encouraging employees to report this behaviour and reassuring them that there will be no adverse consequences if they do report it in the appropriate way. This is something that Westminster failed to do, and what they are subsequently aiming to implement.

Change the culture

Educating employees comes part-in-parcel with reforming the culture. In some workplaces, employees who have, for example, been humiliated or offended by a sexual innuendo (and therefore according to our above definition have been sexually harassed), may feel that speaking out will be seen as petty or sensitive by their managers and colleagues and that this may jeopardise their career prospects.

What employees need to realise (and correspondingly what companies need to instil) is that this kind of behaviour is unacceptable and constitutes sexual harassment. For this to happen, many organisations will need a cultural re-haul.

Management buy-in

In order for a change in culture to be effective, there needs to be buy-in from leadership. And that means complete, active buy-in. As both role models and influencers, leaders need to champion campaigns that promote awareness, and approach sexual harassment cases with an attitude of zero-tolerance. This may include cauterising any inappropriate behaviour before it escalates into sexual harassment as well as ensuring that employees know that sexual harassment claims will dealt with seriously.

Workplace harassment: What should your organisation be thinking about?

How well have you communicated your Equality Act 2010 policy? Are your employees clear what is meant by safeguarding, diversity, harassment, anti-bullying and whistle-blowing? Is it time to recommunicate/train all employees?

Are all employees and leaders clear on what to do should an incident occur?

Are your managers and leaders trained in how to lead a diverse workforce and are they sure what to do when they encounter incidents?

Are your leaders confident in preventing issues arising and dealing with them proactively and in line with policy when they arise?

Are you engaging both men and women on the topic?

Practical tips to mitigate the risk of harassment claims

Create or review your Code of Conduct and make sure it is well communicated across the organisation

Provide a platform/confidential helpline for victims to come forward and report harassment

Create a ‘zero-tolerance’ #zerotolerance campaign at the company – aimed at both men and women

Provide access to an external legal counsel/counsellor for employees for advice

Next steps

Talk to our employee engagement, employment law and organisational culture experts by calling +44 (0)20 3319 5724 or emailing us at [email protected].

Kerry Scott-Patel is a qualified solicitor, specialising in employment law. She designs and delivers training for FTI Consulting domestic and international clients, in both the public and private sectors, on all aspects of UK workplace law.

The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting LLP, its management, its subsidiaries, its affiliates, or its other professionals, members or employees.

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